Obama admin finalizes WOTUS as stakeholders gird for battle

By Annie Snider | 05/27/2015 01:13 PM EDT

After 15 years of regulatory confusion, the Obama administration released a final rule today that would increase the number of streams and wetlands that receive automatic protection under the Clean Water Act.

After 15 years of regulatory confusion, the Obama administration released a final rule today that would increase the number of streams and wetlands that receive automatic protection under the Clean Water Act.

President Obama hailed the final "Waters of the United States" rule issued by U.S. EPA and the Army Corps of Engineers as a major step to protecting the health of waterways and the economy.

"Too many of our waters have been left vulnerable to pollution," he said in a statement. "This rule will provide the clarity and certainty businesses and industry need about which waters are protected by the Clean Water Act, and it will ensure polluters who knowingly threaten our waters can be held accountable."


Speaking on a call with reporters this morning, EPA Administrator Gina McCarthy said the effects of climate change make the rule even more necessary.

"With states like California in the midst of historic droughts, it’s more important than ever that we protect the clean water that we have," she said, noting that wetlands can buffer flooding during extreme storms and can retain moisture during droughts.

Two muddled Supreme Court decisions in 2001 and 2006 created major confusion around whether small, headwater streams and wetlands far from the larger river system fall under the scope of the Clean Water Act. When a water is covered by the law, anyone who wants to fill it in or discharge pollution must get a permit to do so.

Environmental groups and the federal agencies say these types of wetlands and streams are critical to protecting drinking water sources, as well as the health of larger downstream water bodies. But a wide range of industries — from agriculture to homebuilding to mining — have called the regulation a government power grab. They argue it could vastly restrict a range of activities across the landscape, causing massive economic harm and yielding scant environmental benefit.

A number of state and local leaders have also opposed the rule on the grounds that they were not adequately consulted by the agencies in the development of the rule.

McCarthy herself has acknowledged that the rule’s rollout last year was bumpy. Most notable was an interpretive rule for agriculture that was roundly criticized by both supporters and opponents of the overall rule and was ultimately killed by Congress.

Officials from EPA and the Army Corps held more than 400 meetings with stakeholders after the rule was initially proposed and read through more than 1 million public comments, which they say informed the final version.

Bid to address concerns

The final rule would extend automatic protection to any tributary that ultimately feeds larger downstream waters, as well as nearby wetlands and ponds, as was proposed last spring. But it contains key changes from the initial version, including concessions to both industry and conservation interests.

Farmers and ranchers, who have long had a difficult relationship with EPA, raised some of the most staunch opposition to the proposed rule. Agricultural interests argued that erosional features, ditches and other features that cover their fields could fall under federal jurisdiction under the proposal, potentially limiting their ability to apply fertilizers or pesticides.

The final rule aims to alleviate some of those concerns, putting a finer point on what qualifies as a tributary and which types of ditches would fall under jurisdiction.

It specifically excludes certain categories of ditches, including those that flow only after precipitation and those with intermittent flow, as long as they aren’t channelized streams and don’t drain wetlands. The rule also excludes gullies, rills and ephemeral streams that don’t meet the definition of a tributary. And it offers exclusions for groundwater and stormwater control infrastructure.

The final rule also refines when a stream or wetland should be subject to Clean Water Act regulation because it is near or "adjacent" to other jurisdictional waters. Some stakeholders had argued that the agencies’ proposed rule opened the door to limitless jurisdiction on this front (Greenwire, Nov. 25, 2014).

The final version sets some parameters around when such a nearby water should be automatically counted in and when a water is too far away to be considered adjacent.

Environmental and conservation groups, meanwhile, have argued that automatic protections should be extended to certain types of wetlands and lakes that are geographically distant from larger rivers — for example, the prairie potholes of the upper Midwest and California’s vernal pools. Such waters have frequently been without federal regulation in the wake of the 2001 court decision, with regulators left to do laborious case-by-case analyses to determine whether they should be federally regulated.

EPA had initially left these waters to the same case-by-case determinations but asked the public for ideas about how this process could be improved. Meanwhile, the agency’s Science Advisory Board said there was more scientific evidence than the agency had initially documented showing that these types of waters and wetlands can provide flood protection, habitat and pollution filtering benefits to downstream waters (Greenwire, Jan. 15)

The final rule still subjects these waters to case-by-case analyses, but identifies five types of waters that regulators are told to consider as a system. That is to say, rather than considering the importance of an individual wetland, alone, a regulator would look at that wetland in combination with many other nearby wetlands to determine if they all, together, are important enough to merit Clean Water Act protection.

The five categories of waters subject to this type of analysis: prairie potholes, Carolina and Delmarva bays, pocosins, western vernal pools in California, and Texas coastal prairie wetlands.


The release of the final version of the water rule appears unlikely to change the views of Clean Water Act combatants.

The most vocal players in the fight — a number of powerful industry groups on one side and environmental and conservation groups on the other — are unlikely to change their positions. The American Farm Bureau Federation, which has lead the opposition, said that it is still reviewing the final rule but is skeptical that its criticisms will be fixed.

"Based on EPA’s aggressive advocacy campaign in support of its original proposed rule — and the agency’s numerous misstatements about the content and impact of that proposal — we find little comfort in the agency’s assurances that our concerns have been addressed in any meaningful way," the bureau’s president, Bob Stallman, said in a statement.

The Obama administration’s main goal, though, is to win over the handful of groups in the middle, such as the National Farmer’s Union, local stormwater officials and water distributors.

Those groups raised specific concerns about the proposed rule but engaged with the administration in hopes of getting a final rule that improves upon the current regulatory confusion.

Whether they think that the final rule does the trick could be hugely influential to moderate Democrats in the Senate who hold the swing votes on a measure being pushed by opponents to scrap the current regulation.

That bill — S. 1140, from Sens. John Barrasso (R-Wyo.) and Joe Donnelly (D-Ind.) — would require the current rule to be withdrawn and would set a series of criteria that any new rule would have to meet. Those criteria pertain both to the process the agencies would need to go through in developing a rule and to the types of streams and wetlands that can and cannot be covered under federal law.

A test vote on a Senate budget resolution last March suggested that 60 votes could be within reach for a measure to scrap the administration’s rule. But key swing senators, including Sen. Amy Klobuchar (D-Minn.), have said they want to see the final rule before making a decision on how they will vote.

Backers of the Senate measure are moving swiftly to advance it. Today, they argued that the final version of the rule only made their efforts to intervene more necessary.

"Under this outrageously broad rule, Washington will have control over how family farmers, ranchers and small businesses not only use their water, but also their privately owned land," Barrasso said in a statement. "Today’s action ensures further momentum for our bill that says yes to clean water — and no to extreme bureaucracy."

But key Senate Democrats, who have focused primarily on defending the administration’s climate change efforts, today came out en masse for the water rule.

"Small streams and wetlands provide drinking water to roughly 1 in 3 Americans and they must be protected from pollution at the source," Sen. Barbara Boxer of California, the top Democrat on the Senate Environment and Public Works Committee, said in a statement. "The Obama Administration listened to all perspectives and developed a final rule that will help guarantee safe drinking water supplies for American families and businesses and restore much-needed certainty, consistency, and effectiveness to the Clean Water Act."

Environmental and conservation groups that have strongly backed the water rule at once celebrated the final rule as a monumental achievement and geared up for the coming battle.

"It was a long, hard slog to reach this day," Rhea Suh, president of the Natural Resources Defense Council, said in a statement. "Now we will redouble our efforts to defend the new Clean Water rule against developers, big polluters and their allies in Congress who want to kill it."

The rule is slated to go into effect 60 days after it is published in the Federal Register.

Click here for the final rule.

Click here for EPA’s fact sheet on the rule.